Citation Nr: 9816537
Decision Date: 05/28/98 Archive Date: 06/03/98
DOCKET NO. 93-09 894 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to service connection for a left knee
disability.
2. Entitlement to service connection for a low back
disability.
3. Entitlement to service connection for left foot neuroma.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L.A. Howell, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1988 to
December 1990.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida, which denied entitlement to service connection for
the issues currently on appeal. The Board remanded the case
to the RO for further developments by decision dated in March
1995. The requested developments have been accomplished, in
part, and the case has been returned to the Board for
appellate review.
Further, a videoconference hearing was held before a Member
of the Board sitting in Washington, D.C., in March 1998. At
the time, the appellant and his representative were at the
RO. The undersigned Member was designated by the Acting
Chairman of the Board to conduct such a hearing. A
transcript of the hearing testimony has been associated with
the claims file.
Finally, the issue of entitlement to service connection for a
low back disability will be discussed below, the remaining
issues of entitlement to service connection for a left knee
disability and a left foot neuroma will be discussed only in
the REMAND section of this Board decision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that he is entitled to
service connection for a low back disability. Specifically,
he maintains that he injured his back while in service and
continues to have pain. His representative joins in these
contentions.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for entitlement to service
connection for a low back disability.
FINDINGS OF FACT
1. The RO has developed all evidence necessary for an
equitable disposition of the veteran’s claim.
2. In-service complaints of low back pain were
manifestations of a disability that is shown to have been
acute and transitory, and which resolved without residuals.
3. A T10-T11 degenerative disc disease diagnosed post-
service is not shown to be etiologically or causally related
to the in-service complaints of low back pain.
CONCLUSION OF LAW
A chronic low back disability was not incurred in or
aggravated during the veteran’s active duty service. 38
U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1997); 38
C.F.R. § 3.303 (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board finds that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1997); that is, he has presented a claim that is
plausible. Further, he has not alleged nor does the evidence
show that any records of probative value, which could be
associated with the claims folder and that have not already
been sought, are available. The Board accordingly finds that
the duty to assist the veteran, as mandated by § 5107(a), has
been satisfied.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1997).
If a chronic disease is shown in service, subsequent
manifestations of the same chronic disease at any later date,
however remote, may be service connected, unless clearly
attributable to intercurrent causes. 38 C.F.R. § 3.303(b)
(1997). However, continuity of symptoms is required where
the condition in service is not, in fact, chronic or where
diagnosis of chronicity may be legitimately questioned.
38 C.F.R. § 3.303(b) (1997).
In addition, service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 U.S.C.A. § 1113(b) (West
1991 & Supp. 1997); 38 C.F.R. § 3.303(d) (1997). Finally,
the Board must determine whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either case, or whether the preponderance of
the evidence is against the claim, in which case, service
connection must be denied. Gilbert v. Derwinski, 1 Vet. App.
49 (1990).
Service medical records reveal that the veteran was treated
on one occasion for complaints of back pain in April 1990.
The clinical assessment was lumbar strain. There are no
additional complaints, symptomatology, or findings of a low
back disorder during service. The veteran was discharged in
December 1990.
In the initial VA examination report dated in June 1991, the
veteran apparently did not specifically report any injury to
his back during service. Physical examination revealed that
his carriage was erect, posture good, and gait normal.
Examination of the spine revealed normal contours and normal
range of motion of the cervical, dorsal, and lumbar spine
with no paravertebral muscle spasm or tenderness.
Examination of the upper and lower extremities was within
normal limits. The diagnoses included history of injury to
the thoracic spine.
In a VA examination report dated June 1995, the veteran
reported that he had been involved in an automobile accident
two years previously, which resulted in an injury to the
dorsal spine. He indicated that an MRI showed a small
herniated disc. He still noticed some back discomfort at
times but had no radiation into the legs. Physical
examination showed that he walked with a normal gait with no
evidence of any perceptible limp or spinal tilt. Examination
of the lumbosacral spine showed full range of forward
flexion, hyperextension, and lateral bend and rotation.
Straight leg raises were possible through full range. X-rays
showed a hemi-lumbarlization of S1 and a spina bifida
occulta. All of the disc spaces were maintained. In
November 1995, the same examiner again evaluated the veteran.
At that time, he was noted to have a small herniated disc in
the dorsal spine. Examination of the dorsolumbar spine
revealed an excellent range of motion. He complained of some
vague pain in the lower dorsal area at the terminal range of
forward flexion but without radiation. Straight leg raises
was possible through a full range bilaterally.
In the most recent VA examination report dated in December
1996, the veteran reported some upper back pain during
service, which he was told, was a back strain. He was
treated with physical therapy and reportedly had had no
further back problems since. His history was significant for
an automobile accident in 1993 at which time he was noted to
have a T10-T11 disability. Examination of the spine showed
no postural abnormalities or fixed deformities. The
musculature of the back was normal. He had 90 degrees of
flexion, 10 degrees of extension, left and right lateral
flexion was to 40 degrees, and left and right rotation to 30
degrees. There was no objective evidence of pain. The
diagnoses included T10-T11 degenerative disc disease, not
service connected.
Finally, at a videoconference before the undersigned Member
of the Board in March 1998, the veteran testified that he
never had any problems with his back prior to entering into
service. He related that he slipped on a march and injured
his hamstring and back. He was X-rayed and treated with
Motrin. He also reported that he reinjured it on several
occasions in service. He acknowledged having treatment at a
VA facility one time after service and was treated with heat
pad, muscle relaxers, and pain killers. He conceded that he
was getting no current treatment for his back.
Based on the evidence above, the Board finds that there is no
etiological or causal relationship between any claimed
current back disability, of the dorsal spine, and the
veteran’s in-service complaints of low back pain, his
contentions to the contrary notwithstanding. Except for one
incident of low back strain, the service medical records fail
to show on-going treatment for a chronic back disability.
Further, none of the medical examiners have attributed his
back disability to his active service, nor did they indicate
evidence that it was of long standing duration. In fact, the
evidence suggests that his back disability is the result of a
post-service automobile accident, in which the veteran
apparently injured the T10-T11. Because the objective
evidence of record fails to establish a relationship between
the veteran’s in service complaints of low back pain and his
current back symptomatology, the Board must conclude that the
preponderance of the evidence is against the veteran’s claim
for service connection a low back disability.
Furthermore, he has failed to demonstrate continuity of
symptoms sufficient to support of claim of entitlement to
service connection for a low back disability. Importantly,
there is no current evidence of a low back disability and the
veteran has testified that he is not receiving any treatment
for his back. Thus, the fact that he does not currently have
low back symptomatology fails to satisfy the continuity of
requirement of a claim for entitlement to service connection.
In the absence of competent, credible evidence of continuity
of relevant symptomatology, service connection is not
warranted for a low back disability.
The Board has considered the veteran’s statements that he has
continually suffered from low back pain since separation from
service. Although the veteran's statements and sworn
testimony are probative of symptomatology, they are not
competent or credible evidence of a diagnosis, date of onset,
or medical causation of a disability. See Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet.
App. 578, 580 (1992). The veteran’s assertions are not
deemed to be credible in light of the other objective
evidence of record showing no findings indicative of a
chronic back impairment. The veteran lacks the medical
expertise to offer an opinion as to the existence of current
back pathology, as well as to medical causation of any
current disability. Id. The medical evidence is to the
effect that current findings are not related to service.
Thus, the medical evidence does not show the relationship as
alleged by the veteran. As such, a preponderance of the
evidence is against the claim, and the appeal is denied.
ORDER
Entitlement to service connection for a low back disability
is denied.
REMAND
The Board has a duty to assist the veteran in the development
of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1997); 38 C.F.R. § 3.159 (1997). This duty to
assist involves obtaining relevant medical reports and
examinations where indicated by the facts and circumstances
of the individual case. See Abernathy v. Principi, 3 Vet.
App. 461 (1992); Roberts v. Derwinski, 2 Vet. App. 387
(1992); Schafrath v. Derwinski, 1 Vet. App. 589 (1991);
Littke v. Derwinski, 1 Vet. App. 90 (1990); Murphy v.
Derwinski, 1 Vet. App. 78 (1990).
Entitlement to Service Connection for a Left Knee Disability
Entitlement to service connection may be established for
aggravation of a preexisting injury or disease when there is
an increase in disability in service, unless the increase in
disability is due to the natural progress of the disease. 38
U.S.C.A. §§ 1110, 1131, 1153 (West 1991 & Supp. 1997); 38
C.F.R. § 3.306 (1997). With regard to the issue of whether
there was a preexisting injury or disease, applicable law
also provides that a veteran is considered to have been in
sound condition when examined, accepted and enrolled for
service except for defects noted at entrance into service or
where clear and unmistakable evidence shows a disease to have
been preexisting. 38 U.S.C.A. § 1132 (West 1991 & Supp.
1997); 38 C.F.R. § 3.304(b) (1997). However, the presumption
of soundness may be rebutted by clear and unmistakable
evidence consisting of the veteran's own admissions during
in-service clinical evaluations of a pre-service history of
the disability for which service connection is claimed.
Doran v. Brown, 6 Vet. App. 283 (1994).
In this case, the veteran has acknowledged that a left knee
disability pre-existed service by virtue of the written
statements and sworn testimony. Essentially, he acknowledged
that he dislocated his left knee cap prior to entering
service. The Board also notes that private medical records
are associated with the claims file, which show treatment for
an apparent patella dislocation in 1985.
Having found that the veteran's left knee disability pre-
existed service, the Board must next address the question of
whether this preexisting disease was aggravated during his
period of military service. As noted at the outset,
aggravation will be established when there was an increase in
severity during service beyond the normal progression of the
disease. 38 U.S.C.A. § 1153 (West 1991 & Supp. 1997); 38
C.F.R. § 3.306 (1997). Temporary or intermittent flare-ups
of a pre-existing injury or disease are not sufficient to be
considered "aggravation in service" unless the underlying
condition as contrasted to symptoms, is worsened. Browder v.
Brown, 5 Vet. App. 268, 271-72 (1993) (citing Hensley v.
Brown, 5 Vet. App. 155 (1993)); Hunt v. Derwinski, 1 Vet.
App. 292, 297 (1991). Aggravation may not be conceded where
the disability underwent no increase in severity during
service on the basis of all the evidence of record pertaining
to the manifestations of the disability prior to, during, and
subsequent to service. 38 U.S.C.A. § 1153 (West 1991 & Supp.
1997); 38 C.F.R. § 3.306(b) (1997).
Service medical records reveal that the veteran was treated
just two days after entering onto active duty with a history
of his “knee popping out” and wanting a knee brace.
Examination of his knee at that time showed that it was
stable and X-rays showed osteophyte formation with a
“ragged” patella. The clinical assessment was history of
knee injury and mild degenerative left knee. The evidence
shows that he continued to complain of progressive left knee
pain and subsequently underwent a left knee arthroscopy in
November 1989. He continued to report post-operative pain
and eventually underwent a Medical Board proceeding and was
discharged from service for patellofemoral syndrome, left
knee, and status post arthroscopy, left knee medial plica.
The Board notes that the Medical Board report dated in June
1990 indicated that the veteran’s disability was aggravated
by service; however, the Physical Evaluation Board concluded
that the disability was not aggravated by service.
Post service medical examinations have not specifically
address the issue of whether his preexisting left knee
disability was aggravated by service. It is clear from a
review of the medical record that the outcome of the present
case may depend on a medical assessment of the progression of
the veteran's left knee disorder prior to, during, and
subsequent to service. The Court has held that such medical
questions must be addressed by medical experts. Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Therefore, the Board
finds that a remand on this issue is necessary.
Entitlement to Service Connection for Left Foot Neuroma
The veteran contends that he is entitled to service
connection for a left foot neuroma. Specifically, he
maintains that he was treated for a left foot neuroma in
service. He testified at a videoconference hearing that he
still had the sensation of a neuroma at the bottom of his
foot and has had to have it shaved down.
Service medical records reveal that the veteran was treated
on two occasions for complaints of left foot pain. In
January 1989, he was noted to have a callous on the plantar
aspect of the left foot and tenderness of the third and
fourth metatarsal heads. The clinical assessment was
metatarsalgia, possibly secondary to ill-fitting boots. A
podiatry consult and new boots were recommended. An April
1989 podiatry consultation note reveals a clinical assessment
of neuroma, and surgical excision, among other things, was
recommended. However, there does not appear to be any
additional follow-up.
In the initial post-service VA examination report dated in
June 1991, the veteran reported an episode of left foot pain
between the third and fourth toe in 1989. He related that he
still occasionally had pain in the left foot associated with
cramps and tingling in both calves.
In a July 1995 VA orthopedic examination, the veteran
reported swelling and cramping of his left foot. He related
that he was told in service that he had an interdigital
neuroma. He complained that it felt like there was a ball in
the bottom portion of his foot near the third toe. The
clinical assessment was rule out interdigital neuroma of the
third interspace of the left foot.
In a November 1995 VA podiatry examination, the veteran
reflected that he first developed pain in his left foot in
1989 and was diagnosed with neuroma. After service, he
apparently received a steroid injection in the
intermetatarsal space to alleviate the symptoms. Examination
revealed no acute ulcerations and no signs of infection.
There was some diffuse plantar hyperkeratosis present on the
second through fourth metatarsals, mostly noted in the left
foot. He had a positive Mulder’s sign with clicking on
compression of the third and fourth metatarsal heads from
medial to lateral, indicating a soft tissue mass, probably
neuroma, in the third intermetatarsal space of the left foot.
There was also evidence of paresthesia distally and
proximally to the compression of this area, indicating a
positive mostly Tinel’s sign and, to a lesser extent, a
Valieus phenomenon. The final diagnosis was probably soft
tissue mass, third intermetatarsal space, left foot, rule out
Morton’s neuroma.
Given the facts as summarized above and the nature of the
veteran’s claim, it is the decision of the Board that a
medical opinion addressing the contended causal relationship
between his in service treatment for left foot neuroma and
any current left foot pathology is warranted. See Hyder v.
Derwinski, 1 Vet. App. 221 (1990); Green v. Derwinski, 1 Vet.
App. 123 (1990).
In view of the foregoing, this case is REMANDED for the
following actions:
1. The RO should contact the veteran and
ask him to provide the names and
addresses of any medical care providers,
VA or private, who have evaluated or
treated him for symptoms related to his
left knee disorder prior to and since
1985, and related to his left foot
disorder, not already associated with the
claims file. The approximate dates of
such evaluation or treatment should be
reported, and the veteran should provide
the necessary releases for any
information not already requested.
After obtaining the appropriate signed
authorization for release of information
forms from the veteran, the RO should
contact each medical care provider
specified by the veteran to request
specifically any and all medical or
treatment records or reports relevant to
the above mentioned claims. All pieces
of correspondence, as well as any medical
or treatment records obtained, should be
made a part of the claims folder. If
private treatment is reported and those
records are not obtained, the veteran and
his representative should be provided
with information concerning the negative
results, and afforded an opportunity to
obtain the records. 38 C.F.R. § 3.159
(1997).
2. Thereafter, the entire claims file to
include records obtained pursuant to the
above, if any, should be directed to a VA
orthopedic physician for a medical
opinion regarding the relationship
between the veteran’s pre-service left
knee disorder, in-service left knee
injuries and surgery, and current left
knee pathology. If it is determined that
a physical examination of the veteran is
needed in order to answer these
questions, such comprehensive examination
should be scheduled. Specifically, the
examiner is requested to express an
opinion as to the following questions:
(a) Does the veteran have any current
left knee disability? Is so, what is the
diagnosis?
(b) If the veteran does have a left knee
disability, does the record establish
that the underlying pathology producing
the current disability pre-existed his
service? In responding to this question,
the examiner should indicate the degree
to which the opinion is based upon the
objective findings of record as opposed
to the history provided by the veteran.
(c) If the underlying left knee
pathology pre-existed his service, does
the entire record covering the condition
of the veteran's left knee prior to,
during, and subsequent to service make it
more likely than not that any current
disability of the left knee represents an
aggravation of the pre-service condition
beyond the progress that was to naturally
be expected by reason of the inherent
character/nature of the condition versus
any change resulting from the physical
demands of military service, and is that
aggravation attributable to his period of
active service? If it appears the in-
service injury was acute and transitory,
or was a temporary flare-up, that should
also be noted.
The examiner should identify the
information on which he or she based his
or her opinions. The opinions should
adequately summarize the relevant history
and clinical findings, and provide
detailed explanations as to all medical
conclusions rendered. The opinions
should also allocate the veteran's
various symptoms and manifestations to
the appropriate diagnostic entity. If
these matters cannot be medically
determined without resort to mere
conjecture, this should be commented upon
by the examiner.
3. The RO should then forward all the
records to a VA podiatrist for review.
The examiner should, after reviewing the
service medical records, and the post-
service records that are obtained, enter
an opinion as to the following:
(a) Does the evidence reflect that the
veteran had a chronic left foot disorder
service? If so, how would that disorder
be diagnosed?
(b) Is there evidence that the possible
neuroma, and other pathology noted post-
service were related to any in-service
findings or occurrence? Are the symptoms
in service the early manifestations of
the post-service pathology that required
treatment?
(c) Is it possible to tell with any
degree of certainty how long the left
foot neuroma may have been present, to
include whether it would likely be slow
growing or fast growing?
If, after reviewing the record, it is
concluded that an examination of the
veteran is indicated prior to entering
opinions as to these questions, such
examination should be scheduled.
4. The RO should then readjudicate the
issue of entitlement to service
connection for a left knee disability and
entitlement to service connection for a
left foot neuroma. In the event the
benefits sought are not granted, the
veteran and his representative should be
provided with a supplemental statement of
the case and afforded a reasonable
opportunity to respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition warranted in this claim. No action is required
of the veteran until he is notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
MICHAEL D. LYON
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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